Appeal from a judgment of conviction entered after a jury trial in the Southern District of New York, Milton Pollack, J., on two counts of attempted bank robbery by force and violence and of committing that offense by assault with a dangerous weapon in violation of 18 U.S.C. §§ 2113(a) and 2113(d).
Waterman and Mulligan, Circuit Judges, and Bryan,*fn* District Judge.
Melvin James appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Judge Pollack. The jury found James guilty on two counts of attempted bank robbery by force and violence of committing that offense by assault with a dangerous weapon in violation of 18 U.S.C. § 2113(a) and (d). He was sentenced to concurrent terms of 15 years' imprisonment, which he is now serving. At a previous trial the jury had disagreed.
On this appeal, James does not question the sufficiency of the evidence at the trial to sustain his conviction; neither does he claim that any errors were committed at the trial. The sole contention on this appeal is that the court below erred in denying motions to dismiss the indictment made by James prior to his first trial and renewed prior to his second. James urges that the indictment should have been dismissed because he was compelled to testify before the Grand Jury which indicted him in violation of his Sixth Amendment rights.
At pre-trial hearings on the motions to dismiss the indictment, the following facts were developed.
On May 29, 1973 Magistrate Hartenstine, in the Southern District of New York, issued a warrant for the arrest of James and one Ramseur, on a complaint charging attempted robbery of the Manufacturers Hanover Trust Company branch on Soundview Avenue in the Bronx. James was speedily apprehended in the District of Columbia. After a preliminary hearing before a United States Magistrate there on June 5, 1973, he was ordered removed to the Southern District of New York.*fn1 He arrived in New York on June 6, 1973 and was placed in the West Street Federal House of Detention.
On July 13, 1973, over a month after his arrival here, James was brought from West Street to the United States Courthouse and was taken before the Grand Jury which was investigating the attempted bank robbery with which he had been charged in the complaint. He had no counsel and no attempt had been made to have counsel assigned to him.
At the outset of his appearance before the Grand Jury, the examining Assistant United States Attorney advised James that he was a target of the Grand Jury proceedings and that the Grand Jury might indict him for the bank robbery. The Assistant then gave him the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), including his rights to remain silent, to consult counsel, and to have counsel appointed if he could not afford one.
The assistant then proceeded to question him. After some 20 questions had been asked and answered, primarily concerning "pedigree" but including a question as to whether he knew Ramseur, who was charged in the complaint with participating in the robbery,*fn2 the following colloquy took place:
A. . . . You said I have the right to remain silent unless counsel--I wish to have counsel.
Q. You desire to consult with counsel? A. Right.
Q. Mr. James, let us proceed in this fashion. If we reach a question where you desire counsel, tell me or if there is a question, tell me. Do you understand? A. Yes.
Q. But I have the right to ask you the questions and if you desire to consult with an attorney or if you remain or want to remain silent, so advise me. Do ...